Is there an Obligation Erga Omnes to investigate and prosecute for Grave Human Rights Violations in International Customary Law?
##plugins.themes.bootstrap3.article.main##
Abstract
In this article, the author aims to suggest legal guidelines enabling a well argued answer that the obligation to prosecute for grave violations of human rights is a part of customary international law of an erga omnes nature.
In the first part of the article the decisions of international arbitral tribunals are analysed.
In the second part the Genocide convention, Geneva conventions for the protection of the victims of war, Convention against torture all of which provide for an obligation of States to prosecute are analysed.
The third part considers the decisions of the UN Human rights Committee, European Court of Human Rights and the American Court of Human Rights concerning the obligation to prosecute. In their practice all of these institutions acknowledge that States are subject to this obligation. This finds an especially clear expression with respect to the prohibition of torture. The article seeks to demonstrate that the most proper legal basis for this obligation would be the obligation to respect and ensure respect to the rights included in the respectful international agreements. It is alleged that separation of an obligation to respect rights from an obligation to ensure rights is artificial and that it should be read uniformly, without making a distinction between ‚respect“ and ‚ensure respect“.
In the final part of the article the question whether an obligation to prosecute is of an erga omnes character is considered. The major ICJ case referred to is the Genocide case on preliminary jurisdiction, decided in 1996. It is assumed that a possible answer to a question whether the obligation to prosecute for the genocide is erga omnes would serve as a proper basis for the finding that an obligation to prosecute for grave human rights violations may also be termed erga omnes. This assumption finally leads to a positive answer to the major question posed in this artice: the obligation to prosecute for grave human rights violations is a part of customary law and it also is erga omnes. Nevertheless this answer could gain more substance in international law only if the legal consequences of violation of an obligation erga omnes were defined. Up until then, its only certain concequence would be that the violation of this obligation might lead a violator state to a respondent“s bench at the International Court of Justice.
In the first part of the article the decisions of international arbitral tribunals are analysed.
In the second part the Genocide convention, Geneva conventions for the protection of the victims of war, Convention against torture all of which provide for an obligation of States to prosecute are analysed.
The third part considers the decisions of the UN Human rights Committee, European Court of Human Rights and the American Court of Human Rights concerning the obligation to prosecute. In their practice all of these institutions acknowledge that States are subject to this obligation. This finds an especially clear expression with respect to the prohibition of torture. The article seeks to demonstrate that the most proper legal basis for this obligation would be the obligation to respect and ensure respect to the rights included in the respectful international agreements. It is alleged that separation of an obligation to respect rights from an obligation to ensure rights is artificial and that it should be read uniformly, without making a distinction between ‚respect“ and ‚ensure respect“.
In the final part of the article the question whether an obligation to prosecute is of an erga omnes character is considered. The major ICJ case referred to is the Genocide case on preliminary jurisdiction, decided in 1996. It is assumed that a possible answer to a question whether the obligation to prosecute for the genocide is erga omnes would serve as a proper basis for the finding that an obligation to prosecute for grave human rights violations may also be termed erga omnes. This assumption finally leads to a positive answer to the major question posed in this artice: the obligation to prosecute for grave human rights violations is a part of customary law and it also is erga omnes. Nevertheless this answer could gain more substance in international law only if the legal consequences of violation of an obligation erga omnes were defined. Up until then, its only certain concequence would be that the violation of this obligation might lead a violator state to a respondent“s bench at the International Court of Justice.
##plugins.themes.bootstrap3.article.details##
Section
Articles
Authors contributing to Jurisprudence agree to publish their articles under a Creative Commons Attribution-NoDerivatives 4.0 International Public (CC BY-NC-ND) License, allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors are given credit, and that in the event of reuse or distribution, the terms of this licence are made clear.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
